Court No. - 7
Case :- SECOND APPEAL No. - 445 of 2003 Appellant :- Dewanti Devi Respondent :- Smt. Ram Sakhi Devi And Others Counsel for Appellant :- Krishan Ji Khare Counsel for Respondent :- K.S. Rathore,Anirudh Pratap Singh Rathor,Rajeshwari Singh
Hon'ble J.J. Munir,J.
Heard Sri Krishan Ji Khare, learned counsel for the appellant at length in support of the motion to admit this appeal to hearing.
This is a plaintiff's appeal from an appellate decree of the learned Additional District Judge/Special Judge, N.D.P.S. Act, Court No. 1, Ghazipur dismissing Civil Appeal no. 39 of 1997 and affirming the original decree dated 21.02.1997passed by the Additional Civil Judge (Junior Division), Ghazipur in O.S. No. 545 of 1986 dismissing the said suit for reliefs of injunction and recovery of possession. It appears that the plaintiff based her claim on an unregistered sale deed said to have been executed in her favour by Ram Briksh Ram and Hari Narayan, heirs of one Jiyut, who is said to have acquired title to the said land on the basis of possession from time immemorial, ante-dating the year 1947. The said sale deed is an unregistered document executed in favour of Smt. Lachi Devi for a sale consideration of Rs. 90/- only. It was also claimed by the appellant that she is in possession on the basis of said unregistered sale deed executed on 10.02.1974, and described in terms of local usage as a kabala. The defendant contested both the execution of the sale deed, and in any case, rights of the plaintiff based on an unregistered sale deed on various grounds, in particular, the lack of discharge of evidential burden as the original kabala dated 10.02.1974 was not filed in evidence, and instead, a photostat copy of the same and certain other documents were filed. So far as possession of the suit property is concerned, the defendant has claimed to have established possession on the basis of being recorded in the Nagar Palika.
Both the courts below have held that the defendant has not been able to establish her title on the basis of the kabala, or settled possession over the property, that is to say, possessory title superior to that of the defendant. The kabala has been ignored from consideration inasmuch as primary evidence was not led to establish the execution of that document in favour of Smt. Lachi Devi through whom the plaintiff claims. The secondary evidence being a photostat copy could only be accepted in evidence if foundation was laid for reception of secondary evidence, that would involve explaining either loss of the original, or the failure of the plaintiff to produce it at the hearing of the suit.
A perusal of the impugned judgement shows that no such foundation has been laid, in the absence of primary evidence about the kabala dated 10.02.1974. It is also evident that the plaintiff-appellant has not been able to establish her possessory title, superior to that of the defendant on the basis of evidence on record which, both the courts below have accepted for a fact, based on relevant evidence.
In these circumstances, the impugned judgements are concluded by findings of fact, and no substantial question of law arises for consideration in this appeal. Accordingly, this appeal fails and is dismissed under Order XLI Rule 11 C.P.C.
Order Date :- 21.2.2019 Deepak